This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-178

 

In the Matter of the Children of:

M.E.S.O.-M. and R.O.-M., Parents.

 

Filed March 2, 2004

Reversed and remanded
Klaphake, Judge

 

Hennepin County District Court

File No. 204914

 

Leonardo Castro, Chief Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, 317 2nd Avenue South, Suite 200, Minneapolis, MN  55401 (for appellant R.O.-M.)

 

Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, 1200 Health Services Building, 525 Portland Avenue, Minneapolis, MN  55415 (for respondent Hennepin County)

 

James M. Geraghty, 33 N. LaSalle, #2127, Chicago, IL  60602 (for amicus Consulate General of Mexico)

 

Alan C. Thiel, 411 Edina Executive Plaza, 5200 Willson Road, Edina, MN  55424 (for guardian ad litem)

 

            Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant father challenges the district court’s order terminating his parental rights based on a finding that he failed to correct the conditions leading to an out-of-home placement.  Because appellant substantially complied with his court-ordered case plan, we conclude that the district court clearly erred and we therefore reverse and remand.

D E C I S I O N

The district court’s decision to terminate parental rights is reviewed to determine whether the findings (1) address the statutory criteria; (2) are supported by substantial evidence; and (3) are clearly erroneous.   In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997).  Parental rights are terminated only for serious reasons, but only one statutory criterion need be proven.  In re Welfare of P.T., 657 N.W.2d 577, 591 (Minn. App. 2003), review denied (Minn. Apr. 15, 2003).  Although there is a presumption that the natural parent is a fit and suitable person to care for the child, the paramount consideration is the best interests of the child.  Minn. Stat. § 260C.001, subd. 2 (2002); In re Welfare of A.D., 535 N.W.2d 643, 647-48 (Minn. 1995).  Where it is not reasonably foreseeable that placement with the parent can or will occur, and the responsible social service agency has made reasonable efforts to reunite the family, termination is appropriate.  See Minn. Stat. § 260C.001, subd. 3 (2002). 

            The district court concluded that appellant’s parental rights should be terminated under Minn. Stat. § 260C.301, subd. 1(b)(5), which permits termination where a parent, operating under a case plan, has failed to correct the conditions leading to an out-of-home placement.  There is a presumption that a failure to correct conditions occurs if a parent has not substantially complied with the court’s orders and case plan despite reasonable efforts of the social service agency.  Minn. Stat. § 260C.301, subd. 1(b)(5)(iii)-(iv) (2002) (emphasis added).

            Appellant argues that he substantially complied with all rehabilitative programs offered to him by Hennepin County Department of Children, Adult, and Family Services (the department) and ordered by the criminal court.  We agree.  The contact between the children and their mother, which is the basis for the court’s finding of failure to comply with the case plan, does not serve as a fair basis on which to terminate his parental rights.

            The district court recognized that appellant “cooperated with participating in his criminal and Juvenile Court-ordered case plan services including urinalysis screens, individual counseling, domestic abuse and anger management.”  The court noted, however, “he has failed to correct the conditions leading to out-of-home placement” by continuing to put his children at risk of harm due to an ongoing relationship with their mother.

When the district court transferred legal custody of the children to appellant, it included in its order two provisions regarding contact with the children’s mother:  there should be “no avoidable contact between [the mother and appellant], with any necessary communication between them being accomplished through a third party,” and that the mother “has the right to reasonable visitation, subject to approval of the Father.”  It also stated that the mother’s two weekly visits shall be “supervised by a party, and under other circumstances, deemed acceptable to [appellant].”  The order specifically stated that the department was not responsible for supervising visitation or settling visitation disputes. 

The order gave appellant some discretion regarding visitation between the children and their mother and recognized that some contact between appellant and the mother was not avoidable.  While not wanting to minimize appellant’s errors in allowing the mother unsupervised contact with the children, we conclude that the district court cannot terminate appellant’s parental rights based on violation of this ambiguously worded court order.  Appellant understood that the order permitted him some discretion regarding the visitation; at the time he permitted the visitation, the mother still had a legal right to visitation.  Appellant’s errors do not rise to the level of justifying a termination of his parental rights.[1] 

Further, the guardian ad litem and the parties’ case manager testified that appellant is a loving, caring, and good father who provides a good home for the children.  We conclude that the district court erred in terminating appellant’s parental rights on the sole basis of violating an ambiguous part of the court order, when he otherwise complied with his case plan.[2]  

Reversed and remanded.